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One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors. -- Plato (429-347 BC)

Saturday, July 03, 2010

Fact Checking SCOTUS Nominee Elena Kagan

After viewing this week's Senate confirmation hearing for SCOTUS nominee Elana Kagan, it seems appropriate to FACT CHECK some more of her positions and statements. This is rather long so you may wish to skim first for items you may be most interested in reviewing.
Fact Check: “We Tried To Implement His Policy Views”
While Working In The Clinton Administration, Elena Kagan Claimed President Clinton’s Position On “Elective” Partial-Birth Abortion Was “A Problem” And Worked To Change It

ELENA KAGAN: “I Worked For President Bill Clinton And We Tried To Implement His Policy Views And Objectives. (Judiciary Committee, U.S. Senate, Confirmation Hearing, 6/29/10)

Kagan Said President Clinton’s Opposition To “Elective” Partial-Birth Abortion Was “A Problem”

MEMO TO PRESIDENT CLINTON: “MR. PRESIDENT: Attached is a memo from Leon, Jack, George and Nancy-Ann Min on the partial birth abortion bill, setting forth four policy options and attaching a proposed letter to Senator Hatch. DOJ believes that only Option 4 is constitutional, while our Counsel’s office believes any of Options 2-4 are constitutionally sound. In essence these are the options:
1. No use of this procedure in pre- or post-viability stage unless the abortion is being performed because the pregnancy itself threatens life or serious adverse health consequences.
2. Same as Option 1 post-viability, but broader use pre-viability -- namely, if woman chooses an elective (non-health) abortion, she could choose to use this procedure as long as the procedure (as opposed to other procedures) were necessary to avert risk to life or serious adverse health consequences.” (Memo, KCL – 0089762, Clinton Library, 2/5/96)

6CLINTON: “Leon [Panetta] agree w/ #1.” (President Clinton, Note On Memo, 6 KCL-0089762, Clinton Library, 2/5/96)

KAGAN: “You’re right – this is a problem. It seems as if he wants Option 1 (which was also Leon’s preference). Call me whenever. Elena.” (Elena Kagan, Note Regarding President’s Decision, KCL – 0089758, Clinton Library, 2/96)

JACK QUINN: “E – HE DOES. JQ.” (Jack Quinn, Note Regarding President’s Decision, KCL – 0089758, Clinton Library, 2/96)

Fact Check: “Full & Good Access”
Military Said That Kagan “Stonewalled” Recruiters

ELENA KAGAN: “Senator, The Military At All Times During My Deanship Had Full And Good Access.” (Judiciary Committee, U.S. Senate, Confirmation Hearing, 6/29/10)

IN 2004, KAGAN “BARRED MILITARY RECRUITERS” FROM HARVARD LAW

“In November 2004, The Appeals Court Ruled, 2 To 1, That Solomon Was Unconstitutional, Saying It Required Law Schools ‘To Express A Message That Is Incompatible With Their Educational Objectives.’” (“Potential Court Pick Faced Dilemma At Harvard,” The New York Times, 5/7/10)

“The Day After The Ruling, Ms. Kagan — And Several Other Law School Deans — Barred Military Recruiters From Their Campuses.” (“Potential Court Pick Faced Dilemma At Harvard,” The New York Times, 5/7/10)

“But The Ban Lasted Only For The Spring Semester In 2005. The Pentagon Told The University Over The Summer That It Would Withhold ‘All Possible Funds’ If The Law School Continued to bar recruiters from the main placement office.” (“Potential Court Pick Faced Dilemma At Harvard,” The New York Times, 5/7/10)

“So, After Consulting With Other University Officials, Ms. Kagan Said, She Lifted The Ban.” (“Potential Court Pick Faced Dilemma At Harvard,” The New York Times, 5/7/10)

MILITARY: KAGAN “STONEWALLED” MILITARY RECRUITERS
AIR FORCE JAG RECRUITING CHIEF: “[D]enying Access To The Career Services Office Is Tantamount To Chaining And Locking The Front Door Of The Law School.” “Career Services Offices are the epicenter for all employer hiring activities at a law school. … Without the support of the Career Services Office, we are relegated to wandering the halls in hopes that someone will stop and talk to us.  [D]enying access to the Career Services Office is tantamount to chaining and locking the front door of the law school – as it has the same impact on our recruiting efforts.” (Email From Air Force JAG Recruiting Chief, 1/28/05 (K2DOD – 0001358))

“Harvard Is Playing Games And Won't Give Us An OCI [On-Campus Interviewing] Date; their official window for employer registration has closed.  Their recruiting manager told me today that she's still ‘waiting to hear’ whether they’ll allow us.” (Email From Air Force JAG Recruiting Chief, 1/28/05 (K2DOD – 0001358))

ARMY REPORT TO SENIOR PENTAGON LEADERS: “The Army Was Stonewalled At Harvard. Phone Calls And Emails Went Unanswered And The Standard Response Was – We’re Waiting To Hear From Our Higher Authority.” (Email Forwarding Army Report To Senior Pentagon Leaders, March 2, 2005 (K2DOD – 0001168-69))

HARVARD LAW SCHOOL VETERANS ASSOCIATION: INTERVIEWS ENCOURAGED OFF CAMPUS

HARVARD LAW SCHOOL VETERANS ASSOCIATION: “Interviewers Will Be Strongly Encouraged To Arrange For An Off-Campus Location To Conduct Interviews.” (Harvard Law School Veterans Association, Statement, 2/18/05)

HARVARD LAW SCHOOL VETERANS ASSOCIATION:“ Given Our Tiny Membership, Meager Budget, And Lack Of Any Office Space, We Possess Neither The Time Nor The Resources To Routinely Schedule Campus Rooms Or Advertise Extensively For Outside Organizations, As Is The Norm For Most Recruiting Events. … [Our Effort] Falls Short Of Duplicating The Excellent Assistance Provided By The HLS Office Of Career Services.” (Harvard Law School Veterans Association, Statement, 2/18/05)

Fact Check: The Kind Of  Justice Elena Kagan Would Be??
Kagan Says Committee Should “Look To My Whole Life For Indications” But Her Life Reveals A Long Career As A Political Operative

ELENA KAGAN: “I Think You Can Look To My Whole Life For Indications Of What Kind Of A Judge Or Justice I Would Be.” (Judiciary Committee, U.S. Senate, Confirmation Hearing, 6/29/10)

1980: Worked On Senate Campaign Of Noted Liberal Rep. Elizabeth Hotzman

When Democratic Rep. Holtzman Lost In 1980, Kagan Believed “The World Had Gone Mad, That Liberalism Was Dead.” “She spent a summer working on the Senate race of New York Democratic Rep. Elizabeth Holtzman; when Holtzman lost in the 1980 Republican sweep, Kagan cried. As she later wrote, she believed ‘the world had gone mad, that liberalism was dead.’” (“Nomination Is No Surprise To Those Who Know Kagan,” USA Today, 5/11/10)

ELENA KAGAN: “The Defeat” Of Holtzman “By An Ultra-Conservative Machine Politician Just Come From The Town Of Hempstead Was Not A Pleasant Thing To Watch.” “I worked for Liz Holtzman last summer — some 14 hours a day, six days a week. So that night I was at the Brooklyn Academy of Music, attending what I was fairly certain was going to be a celebration. Instead, it was a wake. And let me tell you there is nothing more depressing than drinking vodka and tonics and watching Walter Cronkite with 500 other people whose expectations had differed similarly from reality. I got kind of drunk that night. A lot of people did. Most of us had grown to admire, even to love, Liz or rather, not Liz herself — actually, she was not terribly personable — but her intelligence, her integrity, her ideals. The defeat of those qualities by an ultra-conservative machine politician just come from the town of Hempstead was not a pleasant thing to watch.” (Elena Kagan, “Fear And Loathing In Brooklyn,” The Daily Princetonian, 11/10/80)

Watching Holtzman’s Defeat, Kagan Hoped A “More Leftist Left Will Once Again Come To The Fore”

“In My More Rational Moments, I Can Now Argue That … Perhaps More Leftist Left Will Once Again Come To The Fore.” “In my more rational moments, I can now argue that the next few years will be marked by American disillusionment with conservative programs and solutions, and that a new, revitalized, perhaps more leftist left will once again come to the fore. ” (Emphasis In Original; Elena Kagan, “Fear And Loathing In Brooklyn,” The Daily Princetonian, 11/10/80)

1988: Worked “Conducting Research On The Opposition” For The Dukakis Campaign
“[Elena Kagan’s] Start In Politics Came In 1988, When She Volunteered On Michael Dukakis' Campaign For President. A Self-Described Flunky, She Worked In The Research Department, Defending Dukakis From Political Attacks And Conducting Research On The Opposition.” (“She’s A White House Veteran,” The Los Angeles Times, 5/11/10)

1995-99: Worked “To Score Points Against The Republican Congress” In The Clinton White House

“Government Service: Deputy Assistant to the President for Domestic Policy, 1997-1999. Associate Counsel to the President, 1995-1996.” (“Elena Kagan - Nominee to be Associate Justice of the U.S. Supreme Court,” Judiciary Committee, U.S. Senate, Accessed 6/23/10)

KAGAN: “During Most Of The Time I Spent In The White House, I Did Not Serve As An Attorney; I Was Instead A Policy Adviser. … It Was Part Of My Job Not To Give Legal Advice, But To Choose When And How To Ask For It.” (Elena Kagan, Remarks At West Point, 10/17/07)

“E-Mails From Elena Kagan's Work As An Aide In The Clinton White House Portray The Supreme Court Nominee As Driven And Opinionated, With A Flair For Political Tactics And Little Tolerance For Flowery Rhetoric. A Review Of The Tens Of Thousands Of Pages Of Her E-Mails Released Friday Also Shows How Kagan Often Had To Place Political Considerations Before Policy Views.” (“Clinton-Era E-Mails Show Kagan’s Political Savvy,” AP, 6/21/10)

During “Her Stint As A Domestic Policy Aide… She Suggested Transforming What Was Supposed To Be A Routine Literacy Event At A Maryland School Into A Chance To Score Points Against The Republican Congress.” (“Clinton-Era E-Mails Show Kagan’s Political Savvy,” AP, 6/21/10)

ELENA KAGAN On Campaign Finance Proposals: “Soft $ Ban – Affects Repubs, Not Dems!” (Elena Kagan, Notes, DPC – Box 006 – Folder 006, KCL – 0003690, Clinton Presidential Library, 2/3/97)

Fact Check: “Unusual - the Banning of Free Speech”
Dem Senator Pushes Kagan To Say Citizens United Decision Was “Unusual”, However Media Noted That “It Isn’t Often” You Hear The Solicitor’s Office Argue The Constitutionality Of Banning “A Book”

SEN. RUSS FEINGOLD (D-WI):“ So it was the Supreme Court that instead reached out and asked for re-argument and called into question a 100 year old statute that prohibited corporations more generally from spending money on elections. I just want to clarify this. So let me ask you: Wasn’t it highly unusual, if not unprecedented for the court to do this?” (Judiciary Committee, U.S. Senate, 6/29/10)

It Was Kagan’s Argument That Was Unusual And “Seemed To Shock Some Justices”

“It Isn't Often That A Government Lawyer Stands Before The Supreme Court And Acknowledges That Yes, It Would Be Constitutional To Ban A Book. But That Is What Happened . . ., as Deputy Solicitor General Malcolm Stewart defended a campaign-reform law that treated an anti-Hillary Clinton movie in 2008 as an election ad -- an advertisement that could be restricted, even banned, because a corporation paid for it. What if a book contained everything that was in the movie, asked Justice Samuel Alito. After some back and forth, Stewart replied that theoretically, government could prohibit its publication if it used corporate funds. ‘That's pretty incredible,’ said Alito, who noted that most publishing companies happen to be corporations. It was a pivotal moment that clearly upset the court.” (Tony Mauro, “Top Court Reviews ‘Hillary, The Movie,’” USA Today, 3/26/09)

NATIONAL JOURNAL: “What grabbed the justices' attention, however, was a series of admissions by the government's lawyer, Malcolm Stewart. He said that the government construes the First Amendment so narrowly as to allow Congress, if it chooses, to adopt a hypothetical ban on the financing by any corporation -- with the possible exception of media corporations -- even of books, articles, signs, or Internet postings (as well as broadcast, cable, and satellite ads) supporting or opposing federal candidates. That seemed to shock some justices. ‘If we accept your constitutional argument,’ Chief Justice John Roberts said, ‘we're establishing a precedent that you yourself say would extend to banning [a] book’ paid for by a corporation. These concerns may help explain why on June 29 . . . the Court set Citizens United for re-argument on September 9. The order requested new briefs on a big, broad question: whether to overrule ‘either or both’ Austin v. Michigan Chamber of Commerce, a 1990 decision upholding the 1947 ban on independent corporate campaign expenditures, and the part of the 2003 decision in McConnell v. FEC that upheld McCain-Feingold's ban on corporate funding of electioneering ads.” (“Campaign Finance And Corporations,” The National Journal, 7/11/09)

Fact Check: Kagan on Using Foreign Law
Kagan Responds To Question About Using Foreign Law By Saying She’s “In Favor Of Good Ideas Coming From Wherever You Can Get Them”

ELENA KAGAN On Using Foreign Law: “I Guess I’m In Favor Of Good Ideas Coming From Wherever You Can Get Them.” SEN. CHUCK GRASSLEY (R-IA): “Should judges ever look to foreign law for ‘good ideas,’ should they get inspiration for their decisions from foreign law?” ELENA KAGAN: “Well, Senator Grassley, I guess I’m in favor of good ideas coming from wherever you can get them.” (Judiciary Committee, U.S. Senate, Confirmation Hearing, 6/29/10)

Fact Check: Kagan Waffles On Personal Politics
Nominee Responds Differently To Senator Sessions Than She Does To Senator Graham When Asked The Same Question About Her Political Views

TO SENATOR GRAHAM: “MY POLITICAL VIEWS ARE GENERALLY PROGRESSIVE”
ELENA KAGAN: “My Political Views Are Generally Progressive.” SEN. LINDSEY GRAHAM (R-SC): “Would you consider them -- your political views progressive?” ELENA KAGAN: “My political views are generally progressive.” (Judiciary Committee, U.S. Senate, Confirmation Hearing, 6/29/10)

TO SENATOR SESSIONS: “I’M NOT QUITE SURE HOW I WOULD CHARACTERIZE MY POLITICS”
ELENA KAGAN: “I'm Not Quite Sure How I Would Characterize My Politics.” SEN. JEFF SESSIONS (R-AL): “Greg Craig, the former chief council to President Obama, who's known you for some time, I understand, said of you, "She is largely a progressive in the mold of Obama himself," close quote. Do you agree with that?” ELENA KAGAN: “Well, Senator Sessions, I'm not quite sure how I would characterize my politics.” (Judiciary Committee, U.S. Senate, Confirmation Hearing, 6/29/10)

Fact Check: Kagan's Law Career Vs Political Career
Elena Kagan Touts Her 25-Year Law Career And Dismisses Her 30-Year Political Advocacy

ELENA KAGAN:Some People Have Said Oh, You Know She’s A Political Person. I've Had A 25-Year Career In The Law. Of that 25-year career, four were spent in the Clinton White House. This was a period of time that I am proud of and that I feel as though, you know, I helped to serve the American people for President Clinton, but this is by no means the major part of my legal career.” (Judiciary Committee, U.S. Senate, Confirmation Hearing, 6/29/10)

1980: Worked On Senate Campaign Of Noted Liberal Rep. Elizabeth Hotzman

When Democratic Rep. Holtzman Lost In 1980, Kagan Believed “The World Had Gone Mad, That Liberalism Was Dead.”“ She spent a summer working on the Senate race of New York Democratic Rep. Elizabeth Holtzman; when Holtzman lost in the 1980 Republican sweep, Kagan cried. As she later wrote, she believed ‘the world had gone mad, that liberalism was dead.’” (“Nomination Is No Surprise To Those Who Know Kagan,” USA Today, 5/11/10)

ELENA KAGAN: “The Defeat” Of Holtzman “By An Ultra-Conservative Machine Politician Just Come From The Town Of Hempstead Was Not A Pleasant Thing To Watch.” “I worked for Liz Holtzman last summer — some 14 hours a day, six days a week. So that night I was at the Brooklyn Academy of Music, attending what I was fairly certain was going to be a celebration. Instead, it was a wake. And let me tell you there is nothing more depressing than drinking vodka and tonics and watching Walter Cronkite with 500 other people whose expectations had differed similarly from reality. I got kind of drunk that night. A lot of people did. Most of us had grown to admire, even to love, Liz or rather, not Liz herself — actually, she was not terribly personable — but her intelligence, her integrity, her ideals. The defeat of those qualities by an ultra-conservative machine politician just come from the town of Hempstead was not a pleasant thing to watch.” (Elena Kagan, “Fear And Loathing In Brooklyn,” The Daily Princetonian, 11/10/80)

Watching Holtzman’s Defeat, Kagan Hoped A “More Leftist Left Will Once Again Come To The Fore”

“In My More Rational Moments, I Can Now Argue That … Perhaps More Leftist Left Will Once Again Come To The Fore.” “In my more rational moments, I can now argue that the next few years will be marked by American disillusionment with conservative programs and solutions, and that a new, revitalized, perhaps more leftist left will once again come to the fore. ” (Emphasis In Original; Elena Kagan, “Fear And Loathing In Brooklyn,” The Daily Princetonian, 11/10/80)

1988: Worked “Conducting Research On The Opposition” For The Dukakis Campaign
“[Elena Kagan’s] Start In Politics Came In 1988, When She Volunteered On Michael Dukakis' Campaign For President. A Self-Described Flunky, She Worked In The Research Department, Defending Dukakis From Political Attacks And Conducting Research On The Opposition.” (“She’s A White House Veteran,” The Los Angeles Times, 5/11/10)

1995-99: Worked “To Score Points Against The Republican Congress” In The Clinton White House
“Government Service: Deputy Assistant to the President for Domestic Policy, 1997-1999. Associate Counsel to the President, 1995-1996.” (“Elena Kagan - Nominee to be Associate Justice of the U.S. Supreme Court,” Judiciary Committee, U.S. Senate, Accessed 6/23/10)

KAGAN: “During Most Of The Time I Spent In The White House, I Did Not Serve As An Attorney; I Was Instead A Policy Adviser. … It Was Part Of My Job Not To Give Legal Advice, But To Choose When And How To Ask For It.” (Elena Kagan, Remarks at West Point, 10/17/07)

“E-Mails from Elena Kagan's work as an aide in the Clinton White House portray the Supreme Court nominee as driven and opinionated, with a Flair for Political Tactics and little tolerance for flowery rhetoric. A review of the Tens of Thousands of pges of her e-mails . . . shows how Kagan often had to place political considerations before policy views.” (“Clinton-Era E-Mails Show Kagan’s Political Savvy,” AP, 6/21/10)

During “Her stint as a Domestic Policy Aide… she suggested transforming what was supposed to be a routine literacy event at a Maryland school into a chance to score points against the Republican Congress.” (“Clinton-Era E-Mails Show Kagan’s Political Savvy,” AP, 6/21/10)

ELENA KAGAN On Campaign Finance Proposals: “Soft $ Ban – Affects Repubs, Not Dems!” (Elena Kagan, Notes, DPC – Box 006 – Folder 006, KCL – 0003690, Clinton Presidential Library, 2/3/97)

“Over The Past Decade” Kagan Has Donated Generously To “Democratic Candidates And Causes”

“Supreme Court Nominee Elena Kagan Has Given At Least $12,050 Over The Past Decade To Democratic Candidates And Causes — Including To The President Who Nominated Her and a sitting senator who will get to vote on her nomination — according to federal campaign finance records. Kagan maxed out to her boss and appointer, President Barack Obama, with $4,600 in contributions in June of 2008, adding to the $2,000 she gave him when he ran for the U.S. Senate.” (“Elena Kagan Donated To President Obama, John Kerry,” Politico, 5/10/10)

Fact Check: Kagan's Intervention in Medical Views
Kagan Said She Provided President Clinton The “Best Medical Evidence” About Partial Birth Abortion But Documents Reveal That She Provided The President Findings She Helped Fundamentally Change
Kagan Says There Was “No Way” She Could Have Changed A Medical Organization’s “Medical Views” But Clinton Papers Reveal That She Did
Elena Kagan Worked To Re-Write The Findings Of A Medical Group On Partial Birth Abortion, Used Her Adapted Findings To Persuade President Clinton, And Remained Silent When The Adapted Findings Were Used As Medical Evidence In Subsequent Court Hearings

ELENA KAGAN: “We Tried …  To Get [President Clinton] Absolutely The Best Medical Evidence On This Subject Possible.” “President Clinton had strong views on this issue and what he thought was that this procedure should be banned, in all cases except where the procedure was necessary to save the life or to prevent serious health consequences to the woman and those were always his principles. And we tried over the course of the period of time when this statute was being considered, actually twice, to get him absolutely the best medical evidence on this subject possible.” (Judiciary Committee, U.S. Senate, Confirmation Hearing, 6/30/10)

ELENA KAGAN: “Senator Hatch There Was No Way In Which I Would Have Or Could Have Intervened With ACOG, Which Is A Respected Body Of Physicians, To Get It To Change Its Medical Views On The Question.” (Judiciary Committee, U.S. Senate, Hearing, 6/30/10)

Kagan Said A Draft Statement From American College Of Obstetricians And Gynecologists Saying Partial-Birth Procedure Is Never The Only Option For The Health Of The Woman Is A “Disaster”

ELENA KAGAN: “Todd Stern Just Discovered That The American College Of Obstetricians And Gynecologists (ACOG) Is Thinking About Issuing A Statement (Attached) That Includes The Following Sentence: ‘[A] Select Panel Convened By ACOG Could Identify No Circumstances Under Which [The Partial-Birth] Procedure … Would Be The Only Option To Save The Life Or Preserve The Health Of The Woman.’ This, Of Course, Would Be Disaster – not the less so (in fact, the more so) because ACOG continues to oppose the legislation. … they may try, however, to do something that sounds even stricter. Daschle’s staff hopes that this proposal will provide cover for pro-choice Senators (who can be expected to support it) and that it will refocus the debate from the partial-birth procedure to late-term abortions generally.” (Elena Kagan, Memo For Jack Quinn And Kathy Wallman, RE: Partial-Birth Abortion, KCL – 0090912, Clinton Presidential Library, 12/14/96)

Kagan Notes Show “Suggested Options” For New Language For ACOG
Kagan Notes Show Administration Provided New Language To ACOG Associate Director Of Government Relations: “Suggested Options: This procedure An intact D + X, however, could may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and the a doctor should be allowed to make this determination.” (Clinton Administration To Kathy Bryant (Associate Director Of Government Relations At ACOG), NLWJC – Kagan – DPC – Box 069 – Folder-001, Abortion – Partial Birth ACOG)

Kagan Then Praised ACOG’s Revised Statement On Partial-Birth Abortion After They Adopted The “Suggested Options”
ACOG: “An Intact D & X, However, May Be The Best Or Most Appropriate Procedure In A Particular Circumstance To Save The Life Or Preserve The Health Of The Woman, And Only The Doctor, In Consultation With The Patient, Based Upon The Woman’s Particular Circumstances Can Make This Decision.” (ACOG, Statement On Intact Dilatation And Extraction, 1/12/97)

KAGAN: “Here’s The Final ACOG Statement On Partial-Birth. It Turned Out A Ton Better Than Expected. I’ll Let You Know In Person What Happened.” (Elena Kagan, Notes On Statement, 1/13/97)

Kagan Later Called This Statement “The Most Reliable Opinion” In A Memo To President Clinton
ELENA KAGAN TO PRESIDENT CLINTON: “You have asked whether the so-called partial-birth procedure is ever necessary to save the life of a woman or avert serious harm to her health. Considerable medical uncertainty surrounds this question. ... Perhaps the most reliable opinion is from the American College of Obstetricians and Gynceologists (ACOG), which issued a statement in January addressing the procedure, which it calls intact dilatation and extraction (intact D&X). According to the statement, ‘A select panel convened by ACOG could identify no circumstances under which this procedure would be the only option to save the life or preserve the health of the woman.’ (Emphasis in original.) The statement then went on: ‘An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision.’ In sum, doctors have other options, but those other options may be more risky or otherwise more undesirable from a medical standpoint.” (NLWJC – Kagan – DPC – Box 069 – Folder-001, Abortion – Partial Birth ACOG, 4/10/97)

The U.S. Supreme Court In Stenberg v. Carhart Relied In Part On This ACOG Statement To Hold That Nebraska’s Ban On Partial Birth Abortion Was Unconstitutional
U.S. SUPREME COURT Syllabus: “ACOG Has Also Asserted That D&X Can Be The Most Appropriate Abortion Procedure And Presents A Variety Of Potential Safety Advantages.” “Held: Nebraska’s statute criminalizing the performance of ‘partial birth abortion[s]’ violates the Federal Constitution, as interpreted in Casey and Roe. … (b) The Nebraska statute lacks the requisite exception ‘for the preservation of the … health of the mother.’ Casey, supra, at 879 (joint opinion). … However, the Court cannot read ACOG’s qualification that it could not identify a circumstance where D&X was the ‘only’ life- or health-preserving option as if, according to Nebraska’s argument (8), it denied the potential health-related need for D&X. ACOG has also asserted that D&X can be the most appropriate abortion procedure and presents a variety of potential safety advantages.” (“Stenberg, Attorney General Of Nebraska, Et Al. v. Carhart” Syllabus, U.S. Supreme Court, 6/28/00)

U.S. SUPREME COURT On Nebraska Argument: “And It Points Out (8) That The American College Of Obstetricians And Gynecologists Qualified Its Statement That D & X ‘May Be The Best Or Most Appropriate Procedure,’ by adding that the panel ‘could identify no circumstances under which [the D & X] procedure ... would be the only option to save the life or preserve the health of the woman.’ App. 600-601. … We find these eight arguments insufficient to demonstrate that Nebraska's law needs no health exception.” (Stenberg v. Carhart , 530 U.S. At 914, 934 (2000))

U.S. SUPREME COURT Final Decision Using ACOG Statement: “We Cannot, However, Read The American College Of Obstetricians And Gynecologists Panel’s Qualification (That It Could Not ‘Identify’ A Circumstance Where D&X Was The ‘Only’ Life- Or Health-Preserving Option) as if, according to Nebraska’s argument (8), it denied the potential health related need for D&X.” (Stenberg v. Carhart,  530 U.S. At 935-36 (2000))

Summary Fact: Kagan's "Vapid & Hollow Charade”
Media Notes Kagan “Repeatedly Declined To Weigh In,” “Deflected Questions,” “Wasn’t Willing To Answer More Questions,” & Was “Lead Actor In The Very Farce” She Called A “Vapid And Hollow Charade”

SEN. ARLEN SPECTER (D-PA): “And Perhaps You Haven't Answered Much Of Anything.” (Judiciary Committee, U.S. Senate, Hearing, 6/30/10)
THE WASHINGTON POST: “Fifteen Years Ago, Elena Kagan Wrote A Law Review Article Calling The Supreme Court Confirmation Process ‘A Vapid And Hollow Charade’ That Takes On ‘An Air Of Vacuity And Farce.’ Instead Of A Quality Discussion, She Wrote, Nominees Offer ‘Repetition Of Platitudes’ And ‘Personal Anecdotes.’ On Tuesday, Fate Cast Kagan As The Lead Actor In The Very Farce She Correctly Described. And, to nobody's surprise, she played the role according to the standard script: with platitudes, personal anecdotes and an air of vacuity.”(Dana Milbank, “The Dodgy Miss Kagan,” The Washington Post, 6/30/10)

POLITICO: “Supreme Court Nominee Elena Kagan, Who Years Ago Called Such Hearings ‘A Vapid And Hollow Charade,’ Helped Ensure They Were Exactly That This Week. … One was left wondering if the public would not be better served by forcing nominees to appear on ‘Meet the Press,’ ‘Face the Nation’ and ‘This Week’ — or at the very least ‘Larry King Live’ and ‘The View’ — instead of going through the current process. Would we really learn less? Could we possibly learn less?” (“‘Vapid’? ‘Hollow’? Kagan Nailed It,” Politico, 6/30/10)

THE ASSOCIATED PRESS: “Republicans And Democrats Alike Expressed Frustration That She Wasn't Willing To Answer More Questions Despite Having Once Written A Book Review Saying Supreme Court Nominees Needed To Do Just That.” (“Leahy Predicts Kagan Approval; Hearings Near End,” AP, 6/30/10)

THE WASHINGTON POST: “During More Than Eight Hours Of Friendly Questions From Democratic Senators And Sharper Grilling By Republicans, Kagan Remained Somewhat Guarded. At Times, She Retreated Into Broad Statements About The Constitution Or Recited Legal Precedent On Polarizing Questions Without Divulging Her Own Views.” (“Kagan Refuses To Criticize Supreme Court, Vows To Be Politically Independent,” The Washington Post, 6/30/10)

THE NEW YORK TIMES: “Elena Kagan Deflected Questions About Her Own Views On Gun Rights And Abortion During Her Supreme Court Confirmation Hearings On Tuesday, instead describing Supreme Court precedents. … Ms. Kagan’s responses, during a long and sometimes tense day of parrying with members of the Senate Judiciary Committee, were similar to those of Supreme Court nominees past. But unlike her predecessors, Ms. Kagan wrote a 1995 article calling for judicial nominees to be more forthcoming. On Tuesday, minutes into her testimony, she backpedaled, saying she now believed it would be inappropriate even to answer questions that might “provide some kind of hints” about her views on matters of legal controversy.” (“Kagan Follows Precedent By Offering Few Opinions,” The New York Times, 6/29/10)

USA TODAY: “In Her Second Day Of Questions From The Senate Judiciary Committee, U.S. Solicitor General Kagan Continued Her Cautious Testimony, Relating The Status Of The Law In Many Areas And Shielding Her Personal Views.” (“On Day 3, Kagan Testifies Cautiously,” USA Today, 6/30/10)

THE NEW YORK TIMES: “Ms. Kagan’s Responses, During A Long And Sometimes Tense Day Of Parrying With Members Of The Senate Judiciary Committee, Were Similar To Those Of Supreme Court Nominees Past. But Unlike Her Predecessors, Ms. Kagan Wrote A 1995 Article Calling For Judicial Nominees To Be More Forthcoming. On Tuesday, Minutes Into Her Testimony, She Backpedaled, saying she now believed it would be inappropriate even to answer questions that might ‘provide some kind of hints’ about her views on matters of legal controversy.” (“Kagan Follows Precedent By Offering Few Opinions,” The New York Times, 6/29/10)

WALL STREET JOURNAL: “Kagan Created Some Distance From The Article Saying She Was ‘Wrong’ When She Said That Nominees Should Be Able To Talk About Past Supreme Court Cases And Whether They Agreed With The Holdings. Now, she said, she thinks that would be inappropriate because those precedents could come before the court again.” (“Kagan Backs Away From 1995 Article On Hearings,” The Wall Street Journal, 6/29/10)

THE ASSOCIATED PRESS: “Supreme Court Nominee Elena Kagan Is Distancing Herself From A 15-Year-Old Article In Which She Says Nominees Should Be More Forthcoming About Their Views During Confirmation Hearings.” (“Kagan Declines To Offer Ideological Direction,” AP, 6/29/10)

POLITICO: “Elena Kagan Repeatedly Declined To Weigh In.” “Rhode Island Sen. Sheldon Whitehouse took direct aim at the Roberts Court, saying the conservatives on the court have tried to ‘topple’ precedent they don't like. But Elena Kagan repeatedly declined to weigh in, even on the Citizens United campaign finance case in which she took the losing position. ‘I’m not going to characterize the court or any of the justices on the court,’ Kagan said.” (“Kagan Dodges Critique Of Roberts Court,” Politico, 6/30/10)

ROLL CALL: “That Answer Did Not Satisfy Feingold, A Campaign Finance Reform Advocate Who Continued To Press Kagan On Whether She Takes Note Of The Public Reaction To High Court Rulings.” (“Kagan Shows Feisty Side As Questioning Begins,” Roll Call, 6/30/10)

Tags: Elena Kagan, SCOTUS, nominee, fact check To share or post to your site, click on "Post Link". Please mention / link to the ARRA News Service. Thanks!
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